| Tuesday, October
9, 207
This may be of
interest in the digital rights debates:
Dear Jerry,
something that might be of interest to your readers
that Ursula K. Le Guin contacted me about: Cory Doctorow of boingboing.net
infringed her copyright by reprinting the entirety of her short story "On
Serious Literature" on boingboing without authorization; he misrepresented
her intent in his copy; he omitted her copyright notice; and he instead
placed a Creative Commons license on it indicating that others can freely
copy and alter her story.
Here are the relevant facts:
- URL:
http://www.boingboing.net/2007/07/04/ursula-leguin-rips-i.html
Assuming this may shortly be removed or changed, an original would also be
visible at
ARCHIVE LINK (search in that page for "Ursula", about
1/3 of the way down). Googling on "boingboing ursula le guin chabon" shows a
number of other copies made by boingboing readers (assumedly believing the
CC license granted them permission).
- Her piece was published, with permission, in several
places including Ansible,
http://news.ansible.co.uk/a240.html#leguin, which Doctorow
identifies as his source. Ansible gave no permission for anyone to copy her
story, and indeed it carries Ms. Le Guin's copyright notice; a notice that
was omitted in the boingboing copy.
- The boingboing copy is of the entire text of the
short story, which would not be covered under Fair Use. Doctorow has spoken
widely on copyright matters and the limits of Fair Use, so he should be
aware that copying an entire work is not permitted.
- Doctorow and boingboing, of which he is billed as a
principal, operate for personal gain via advertising revenue, merchandise
sales, publicity for his books, etc. Under copyright law, copyright
infringement for commercial advantage may be considered a criminal offense.
(Removal of a copyright notice and knowingly placing a Creative Commons
license on a work without authorization may also be illegal.)
- The original publication correctly identifies that
Ms. Le Guin's story is in response to a quote from a woman named Ruth
Franklin, which she wrote in a book review in Slate Magazine. Doctorow's
headline is "Ursula LeGuin rips into Slate Magazine" and calls it "Slate
Magazine's statement" that Ms. Le Guin takes exception to. Slate Magazine
does not list Ruth Franklin as an editor or anyone empowered to speak for
the magazine. A more correct headline and text would be that "Ursula Le Guin
takes exception to Ruth Franklin's statement," though understandably this
might not attract as many readers to boingboing since Ruth Franklin is
relatively unknown compared to Slate Magazine. Ms Le Guin feels that both
she and Slate Magazine are justified in resenting the misrepresentation.
- Below her story on the boingboing site it says,
"This work is licensed under a Creative Commons License permitting
non-commercial sharing with attribution." This is linked to
http://creativecommons.org/licenses/by-nc/2.5 which states "You
are Free: to Share -- to copy, distribute and transmit the work; to Remix --
to adapt the work" (for noncommercial purposes with attribution). This is
incorrect. Ms. Le Guin has not placed this work under such a license and
retains these rights. Ms. Le Guin has not given blanket permission for
everyone to copy or create derivatives (which can include film, TV
adaptations, etc.). Numerous copies of her piece have been discovered on the
web and attributed to boingboing, illustrating that many people are being
mislead by this incorrect application of a Creative Commons license.
- Because this Creative Commons license appears on
apparently every page on boingboing.net -- including pages with user
comments, photographs, videos, and any pages that may use material beyond
the limits of fair use -- it may also be leading visitors to believe that
other people's copyrighted works are covered under Creative Commons licenses
when they are not. While it is common for web sites to carry blanket
copyright notices in footers, an overly broad blanket copyright notice in a
footer would induce a would-be copier to seek permission, and thus correctly
ascertain the copyright status of a piece (i.e. no harm is done), whereas an
overly broad Creative Commons license encourages visitors to copy, without
asking, pieces that should be asked about (causing possible harm to the
copyright owner, such as in this case to Ms. Le Guin).
Doctorow's copyright infringement will cause Ms. Le
Guin a significant amount of work to get the numerous copies of this removed
that boingboing readers believed they had the right to reprint. This
unauthorized, widespread reprinting may also damage the value of this story
to publishers and cost Ms. Le Guin future reprint sales. The
misrepresentation may improperly give readers the impression that Ms. Le
Guin has a grievance with Slate Magazine that she does not. It may be
difficult to stop future copying by readers who believed the work was
released under a Creative Commons license. These problems may happen to
others as well, given boingboing's quoting practices and pervasive placement
of CC licenses.
Given Doctorow's intense interest in issues of
copyright, it is easy to imagine that he has let his wishes run ahead of
reality, and so committed some serious ethical and legal errors, which he
might wish to begin to redress by taking the Le Guin piece off his site and
putting an apology in its place.
--Dr. Andrew Burt As approved by Ursula K. Le Guin
Permission is granted to copy this message elsewhere.
Fascinating. Doctorow went half mad over
SFWA's action against scribd
http://www.boingboing.net/2007/08/30/science-fiction-writ-1.html
in which the Science Fiction Writers of America attempted to act in a
massive violation of copyright and inadvertently included one of Doctorow's
works in a takedown order. I
told that story in Chaos Manor Reviews.
One presumes that Doctorow will plead his
copyright violation was a mistake. It is not an explanation that he would
accept from SFWA.
It is an old maxim of equity that he who
seeks equity must do equity.
Subject: Dr. Burt's letter
That is truly pathetic. I hope it's not the best Dr.
Burt can come up with. I don't really have the time or the patience to
refute Dr. Burt's letter in detail, but I've embedded some comments below.
>>- Her piece was published, with permission, in
several places including Ansible, http://news.ansible.co.uk/a240.html#leguin,
which Doctorow identifies as his source. Ansible gave no permission for
anyone to copy her story, and indeed it carries Ms. Le Guin's copyright
notice; a notice that was omitted in the boingboing copy.<<
As Dr. Burt must know, there is no requirement to
publish a copyright notice on material that is re-used under Fair Use.
>>- The boingboing copy is of the entire text of
the short story, which would not be covered under Fair Use. Doctorow has
spoken widely on copyright matters and the limits of Fair Use, so he
should be aware that copying an entire work is not permitted.<<
The entire work comprises *one paragraph*. Quoting a
single paragraph has always been considered Fair Use. Can anyone point to a
case where quoting one paragraph has been successfully prosecuted as
copyright infringement?
>> - Doctorow and boingboing, of which he is
billed as a principal, operate for personal gain via advertising
revenue, merchandise sales, publicity for his books, etc. Under
copyright law, copyright infringement for commercial advantage may be
considered a criminal offense. (Removal of a copyright notice and
knowingly placing a Creative Commons license on a work without
authorization may also be illegal.) <<
It's a real stretch to claim that BoingBoing placed a
Creative Commons license on anything other than its own content. As Dr. Burt
admits elsewhere in his letter, it's common and accepted practice to place a
site copyright notice on each page of a web site. You do it, and I do it.
Everyone does it. And it's widely understood that that copyright notice
applies only to original material, and not to quoted material. If you post
this message on your web page, no reasonable person could believe that you
are claiming copyright on my words.
>>- The original publication correctly identifies
that Ms. Le Guin's story is in response to a quote from a woman named
Ruth Franklin, which she wrote in a book review in Slate Magazine.
Doctorow's headline is "Ursula LeGuin rips into Slate Magazine" and
calls it "Slate Magazine's statement" that Ms. Le Guin takes exception
to. Slate Magazine does not list Ruth Franklin as an editor or anyone
empowered to speak for the magazine. A more correct headline and text
would be that "Ursula Le Guin takes exception to Ruth Franklin's
statement," though understandably this might not attract as many readers
to boingboing since Ruth Franklin is relatively unknown compared to
Slate Magazine. Ms Le Guin feels that both she and Slate Magazine are
justified in resenting the misrepresentation.<<
Again, this is a real stretch. Slate published the
article in question, which in the absence of any disclaimer means that Slate
endorses and is responsible for what is said in the article. The only
exception to this rule are Letters to the Editor and similar features, where
it's clear that the text is the opinion of the author rather than the
opinion of the publisher. If I write an article for, say, Make Magazine,
it's certainly valid for someone subsequently to report that "Make Magazine
says...".
>> Doctorow's copyright infringement will cause
Ms. Le Guin a significant amount of work to get the numerous copies of
this removed that boingboing readers believed they had the right to
reprint. This unauthorized, widespread reprinting may also damage the
value of this story to publishers and cost Ms. Le Guin future reprint
sales.<<
Give me a break. Damage the value of the story to
publishers? Cost Ms. Le Guin future reprint sales? It's one bloody
paragraph.
>> Given Doctorow's intense interest in issues of
copyright, it is easy to imagine that he has let his wishes run ahead of
reality, and so committed some serious ethical and legal errors, which
he might wish to begin to redress by taking the Le Guin piece off his
site and putting an apology in its place. <<
So, Mr. Burt attempts to equate the Fair Use quoting
of one paragraph with his attempted abuse of the DMCA? I say attempted only
because of Mr. Burt's incompetence in filing a pseudo take-down notice that
did not meet the requirements of the DMCA. Had he filed his notice in
correct form, he and presumably his organization would have been subject to
extremely heavy penalties.
-- Robert Bruce Thompson
Gander sauce, surely? If Doctorow had not made
such a flipping big deal out of the inclusion of one of his documents -- one
without his name on it, posted by a third party -- in a takedown order
directed to what was a massively pirate web site out raising money on
traffic generated by pirate documents -- no one would have noticed or cared
that Doctorow is also in technical violation.
Incidentally, I pretty thoroughly dislike
the practice of chopping messages up and writing little paragraphs in
between them.
And your "attempted abuse of the DMCA" is
more than over the top. No one intentionally violated anyone's rights in the
SFWA case, the worst that happened to anyone was that for a few hours their
open documents were not posted on a site whose major attraction was through
giving away stolen works, and in fact no real harm was done to anyone except
the pirates.
I can agree that what Doctorow did here
was trivial -- but then so was the "attempted abuse of the DMCA".
Policing pirate web site, particularly those who have raised millions in
venture capital, is difficult; and your bile is showing here.
If the libertarian position is that
information ought to be free and those who attempt to defend author rights
are to be held to a highly technical set of standards while those like
Doctorow who want everything to be free as in beer are not, then you do that
position no favors and certainly do not make it more attractive.
Scribd deliberately made it very difficult
to get them to take down works that were very obviously stolen property,
piracy, and tried to hide behind the laws and their babble about fair play.
Doctorow stepped up to defend these pirates. Yes, there were errors made in
combating these people, but the effect of those errors was easily remedied;
when you have given away copies of other people's works, often their entire
life work, that is not so easily remedied. Ask Chalker's widow.
I do not understand the automatic rush to
defend pirates and thieves who use other people's work to draw traffic to
their web site so that they can sell advertisements and raise money.
They are using other people's work to make money. I see no reason why
one ought automatically to assume they are right and the authors are always
attempting to abuse the DMCA.
========
It suddenly occurs to me: Doctorow was
unhappy that his free work was not available for download from a site which
gets much of its traffic from theft and piracy. Think about that. He was
unhappy that the distribution of his work was impeded. He sought to profit
from the traffic directed to the pirate site and went mad when that "right"
was thwarted.
Under that logic those who bought
advertisements on the pirate site have a right to be unhappy when its
traffic is decreased by authors reclaiming their works. Sheesh.
========
Response to one of Mr. Thompson's points -
Mr. Thompson asked a question while rebutting Dr. Burt
(http://www.jerrypournelle.com/mail/mail487.html#Tuesday):
"Can anyone point to a case where quoting one
paragraph has been successfully prosecuted as copyright infringement?"
The answer is yes. Ashleigh Brilliant has successfully
file copyright infringement suits for several of his writings, and they are
all one *sentence* long. Examples are available on Mr. Brilliant's web page
at:
http://www.ashleighbrilliant.com
He has on his web site (with permission and full
attribution) a copy of a Wall Street Journal article about himself and his
successful fights to protect his copyrighted epigrams. That page is
http://www.ashleighbrilliant.com/WSJ.htm. However, the page is
remarkably hard to read so I'll quote the relevant portion here. Brilliant
cites "Exactly How Many Brilliant Thoughts Are There? 5,632." by Amy
Stevens, published in The Wall Street Journal, January 6, 1992, front page.
Copyright of the article attributed to 1992 Dow Jones & Co. Inc., 1992.
*begin quote* While Mr. Brilliant attempts to make the
prose timeless, it wasn’t until 1979 that the legal system helped make it
profitable. In a case against a heat-transfer decal company that
appropriated three expressions (including "I have abandoned my search for
the truth and am now looking for a good fantasy"), a federal judge in Los
Angeles ruled that Mr. Brilliant’s works were "epigrams" entitled to full
copyright protection, as distinct from mere "short phrases," which can’t be
copyrighted.
That decision, and an $18,000 damage award, encouraged
Mr. Brilliant to demand money from others. He’s written more than 350
threatening letters to alleged infringers, and has filed and won a half
dozen copyright cases. *end quote*
As to the amount of a work that can be used under fair
use provisions, I suggest a quick glance at Stanford University's Copyright
and Fair Use information:
http://fairuse.stanford.edu/
Copyright_and_Fair_Use_Overview/chapter9/9-b.html#3 TinyURL:
http://tinyurl.com/3xvogn
Of particular relevance are "3. The Amount and
Substantiality of the Work Taken" and in the following section, "Too Small
for Fair Use: The De Minimis Defense".
I don't have the page open at the moment, but if I
recall correctly, Doctorow's text was less than a third of the Le Guin text
he copied, so I doubt that a De Minimis defense would stand.
--Gary Pavek
And see below
=========
I don't suppose that you get many messages from
terrorists,
Jerry,
A seventeen year old in the UK has been charged under
the terrorism act for owning a copy of "The Anarchists Cookbook", a work
that I understand was first disseminated by the CIA. It appears that the
accused had neither planned nor carried out and terrorist act and that the
mere posession of information useful to a terrorist was enough for a
criminal charge to be brought.
Your correspondent has to admit having spent two years
studying slaughter in all its aspects, and although this was nearly fifty
years ago he still remembers much of what he learnt. Before this foolish
prosecution was started you correspondent regarded himself as an ordinary
law abiding citizen who happened to be of an age that meant that he had been
conscripted into the army. Now I am at a loss. Should I plan some outrage?
Should I become a career criminal and vanish into the underworld? I'm damned
if I know.
John Edwards
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